Legal pot, dog sniffs, and the Fourth Amendment

Does the possessor of legally-permissible marijuana have a reasonable expectation of privacy sufficient to raise a successful Fourth Amendment claim?

The U.S. Supreme Court recently heard oral argument in two 2011 Florida cases addressing the constitutionality of dog sniff tests.

Within a week of these arguments, two states passed laws legalizing marijuana.

These legal developments — anticipated high court decisions and new laws — will have far-reaching Fourth Amendment implications for law enforcement officers.

Jardines, Harris, and the State
In Jardines v. State of Florida, the Florida Supreme Court concluded that a dog sniff test of a private home based on an anonymous tip was, for Fourth Amendment purposes, a search that must be justified by a showing of probable cause rather than reasonable suspicion.

One week later, in Harris v. State of Florida, the same court articulated numerous factors that must be shown in assessing the reliability of a drug dog’s alert in order to satisfy the probable cause standard for the warrantless search of a vehicle’s interior.

In Jardines, an anonymous “crime stoppers” tip led the police to conduct a dog sniff test of Joelis Jardines’ home for evidence that he was growing marijuana.

After Franky the drug dog altered on the front porch, the police secured the residence and obtained a search warrant, ultimately seizing live marijuana plants from the home. The Florida Supreme Court reviewed U.S. Supreme Court dog sniff jurisprudence in luggage, vehicle exterior, and traffic stop contexts and concluded that the analysis used in those cases did not apply in a private home setting.

The court noted that a dog sniff conducted during a lawful traffic stop which revealed only the location of contraband — a substance that no individual has a “right” to possess — did not violate the Fourth Amendment. The court reasoned that, if the possession of a substance is not legitimate, then no privacy interests are implicated.

Characterizing the dog sniff test as “a vigorous and intensive procedure,” the Florida court stated that it would reveal not only the presence of contraband but also expose the resident to humiliation and potentially arbitrary or discriminatory application.

The Court held that the dog sniff test was a search which needed to be supported by probable cause, and ultimately the Court concluded that:

Given the special status accorded a citizen’s home in Anglo-American jurisprudence, we hold that the warrantless “sniff test” at the front door of the residence in the present case was an unreasonable government intrusion into the sanctity of the home and violated the Fourth Amendment.

In Harris, the Florida Supreme Court considered dog sniffs and vehicle searches, addressing the question whether a drug dog’s alert to a vehicle’s exterior provided probable cause to conduct a warrantless search of the interior.

Police stopped Clayton Harris for an expired tag. After watching his rapid breathing and fidgeting and observing an open container of alcohol, the officer asked for consent to search his truck, but Harris refused.

Aldo, a drug dog, was brought up to conduct a “free air sniff” around the exterior of the truck and the dog alerted to the door handle on the driver’s side. Police found precursor materials for the manufacture of methamphetamine, but no narcotics, in the truck.

The issue in Harris centered on Aldo’s training and certification in support of the probable cause determination for the warrantless search of the truck.

The Florida court concluded that the mere fact that a trained and certified drug dog alerted does not establish probable cause to search the vehicle and the person. Noting that a dog cannot be cross-examined, the court likened the situation to analysis of an informant’s reliability and adopted a rigorous totality of the circumstances standard:

... [T]he State must present evidence of the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability.

In this case, the court held, the totality of the circumstances did not support a probable cause determination and the trial court should have granted the motion to suppress.

Both Jardines and Harris were argued before the U.S. Supreme Court on October 31, 2012. Copies of the transcripts of the arguments are available here.

Age of Legalized Marijuana
On November 6, 2012, voters in Colorado and Washington legalized marijuana for those 21 and older under specified circumstances.In both states, the vote was approximately 55 percent in favor and 45 percent in opposition. Washington’s law went into effect on December 7, 2012, and Colorado’s governor signed a proclamation amending the state constitution effective December 10, 2012.

That these new state laws will impact law enforcement searches of homes and vehicles — and dog sniffs in particular — is certain.

If possessing a formerly contraband substance is now legal, does that mean its possessor has a reasonable expectation of privacy in it sufficient to raise a successful Fourth Amendment claim? What about narcotics dogs who have been trained to find marijuana — when they alert and only marijuana is found (in a legal quantity), can the search be successfully challenged in court if other contraband is found, such as a gun?

Although already critical for the legality of dog sniffs and drug searches, the Supreme Court’s upcoming decisions in Jardines and Harris may also provide a key roadmap to navigating the new reality in those states that have decriminalized marijuana.

About the author

Joanne Eldridge has more than twenty years' experience as a government attorney and advocate. She served on active duty with the U.S. Army Judge Advocate General's Corps for over ten years and has extensive experience in criminal and Constitutional law in both federal and state court. She is a graduate of Boston College and the George Washington University Law School and holds a Master of Laws degree in military law. She has been admitted to practice before the Maryland Court of Appeals, the U.S. Army Court of Criminal Appeals, the U.S. Court of Appeals for the Armed Forces, the U.S. Supreme Court, the Colorado Supreme Court, and the Supreme Court of New Hampshire. She is currently practicing law in northern Virginia.